The prior two articles in this
series have discussed the constitutional basis for the establishment
of the U.S. Fish & Wildlife Service and in them it was demonstrated
that this agency has its origins within the federal treaty power.
Are there more such agencies? How about the DEA and FDA?

Control over the possession and
sale of any item within the states is not a power possessed by Congress.
This was so held in United States v. DeWitt, 76 U.S. 41, 45
(1870), which tested the constitutionality of a federal revenue act
making it illegal to sell illuminating oil of a certain flammability.
Here, the Court held Congress did not have the power to penalize these
sales:

"As a police regulation, relating
exclusively to the internal trade of the States, it can only have
effect where the legislative authority of Congress excludes, territorially,
all state legislation, as, for example, in the District of Columbia.
Within state limits, it can have no constitutional operation."

More than 40 years later, Congress
enacted a federal drug law designed to make criminal the possession
of contraband drugs like opium. Based upon the decision in DeWitt,
the Supreme Court held in United States v. Jim Fuey Moy, 241
U.S. 394 (1916), that Congress did not have power to make penal mere
possession of drugs within the states. These two cases have never
been reversed, so how did we get the DEA? Like the Fish & Wildlife
Service, the origins of this federal agency is also in treaties.

In 1912, the Senate adopted the
International Opium Convention - see 38 Stat. 1912. Later, this convention
was supplemented by a similar convention of 1913, the Multilateral
Narcotics Drugs Convention, ratified on March 31, 1932, 48 Stat. 1543,
which was thereafter implemented by appropriate federal legislation
designed to control poppy production within this country. [Note from
Devvy: this 1932 convention is null and void since it was ratified
by a senate serving in office under a law that does not exist.] In
Stutz v. Bureau of Narcotics, 56 F.Supp. 810, 813 (N.D.Cal. 1944),
some poppy growers sought an injunction to enforcement against them
of the provisions of the act implementing the convention, their argument
being the act invaded the reserved powers of the Tenth Amendment.
In rejecting this argument and holding that the act applied within
the jurisdiction of California, the Court declared:

"The competency of the United States
to enter into treaty stipulations with foreign powers designed to
establish, through appropriate legislation, an internationally effective
system of control over the production and distribution of habit forming
drugs is not questioned. The obligations of the United States incurred
as a party to the two Conventions heretofore mentioned were lawfully
undertaken in the proper exercise of its treaty making power. And
Congress is constitutionally empowered to enact whatever legislation
is necessary and proper for carrying into execution the treaty making
power of the United States."

Other cases have also noted that
control over drugs by the federal government arises from these treaties
- see United States v. Rodriguez-Camacho, 468 F2d. 1220 (9th Cir.
1972); and NORML v. Ingersoll, 497 F2d 654 (D.C.Cir. 1974), later
opinion at 559 F2d. 735 (D.C.Cir. 1977). The jurisdiction of the DEA
is therefore based upon these drug treaties and it thus has an international
jurisdiction. Henry Hudson, Randy Weaver's defendant and the former
head of the Marshal's Service, stated as much on his Sunday afternoon
radio show in the D.C. area back in March of this year.

The power of the DEA to control
"bad" drugs such as opium and cocaine is constitutionally indistinguishable
from the similar power of the FDA to control other "drugs" such as
Vitamin B and shark cartilage. If the DEA is a treaty-based federal
agency, is it not possible that so is the FDA? As you might expect,
the authority of the FDA arises from a 1906 international Agreement
for Unification of Pharmacopeial Formulas for Potent Drugs.

There are other examples of treaties
being used to provide jurisdiction for federal crimes. Of course,
Congress completely lacks delegated authority to control prostitution
within the states. However, the Agreement for Repression of Trade
in White Women was ratified by the Senate on March 1, 1905 - see 35
Stat. 1979. The implementing legislation for this treaty was the White
Slave Traffic Act, 36 Stat. 825. The Supreme Court has noted that
this treaty provides jurisdiction to enact laws on this subject; see
United States v. Portale, 235 U.S. 27 (1914). But, even with
jurisdiction being based upon this treaty, there are limits to prosecutions
for violations thereof and everything relating to prostitution cannot
be federally controlled - see Keller v. United States, 213
U.S. 138 (1909).

In summary, it is quite clear that
the U.S. Fish & Wildlife Service, DEA and FDA are treaty-based federal
agencies. Under the U.S. Constitution, Congress has the power to make
criminal four types of conduct: treason, counterfeiting, piracies
and felonies on the high seas, and offenses against the laws of nations.
Very few people discuss which precise federal crimes fall within the
category of offenses against the laws of nations and it would be very
beneficial if we knew which crimes were of this type. Obviously, the
criminal provisions of the federal gambling laws and the federal drug
laws can be but one thing: offenses against the law of nations.

it is quite clear that the U.S. Fish & Wildlife Service, DEA and FDA are
treaty-based federal agencies. Under the U.S. Constitution, Congress has
the power to make criminal four types of conduct: treason, counterfeiting,
piracies and felonies on the high seas, and offenses against the laws
of nations.